On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
Approved for Publication March 19, 1997.
Before Judges Dreier, Wefing and Newman. The opinion of the court was delivered by Newman, J.A.D.
The opinion of the court was delivered by: Newman
The opinion of the court was delivered by:
Defendants appeal from a judgment entered in this wrongful death and survivorship action in the amount of $400,000, reduced to $240,000 based on the jury's finding that decedent, Gerald Black, was forty percent negligent. On appeal, defendants argue that the trial Judge erred by refusing to admit evidence of decedent's blood alcohol level and the presence of cocaine metabolite in his system; that plaintiff's counsel's closing argument, branding defense counsel as a liar and making repeated references to missing maintenance records and statements, was unduly prejudicial; that the trial Judge erred in refusing to provide an appropriate damage charge limiting the jury's award for pain and suffering, pecuniary injury and past and future lost earnings; and that the trial Judge erred in his charge to the jury by incorporating administrative code provisions into the negligence charge. We reverse because evidence of decedent's drinking, which would have informed the jury on the issue of comparative negligence, was not admitted.
The facts of the accident are relatively straightforward. Decedent was a fruit-tree trimmer. He lived with his wife and three children in an apartment at the Buttonwood Village Housing Complex in Seabrook. On June 24, 1988, defendant did not go to work because it had rained earlier in the day. His wife, plaintiff Linda Black, remained home from work as well. During the afternoon, decedent went to an ice cream truck to buy his daughter an ice cream cone. On returning to his apartment, accompanied by his friend, Jack Johnson, decedent found that the rear door was stuck. According to the testimony of plaintiff Linda Black, the door had stuck in the past, especially in humid weather.
The door consisted of a wooden frame which contained a glass pane in its top half. Decedent attempted to open the door by striking it on the wooden area as he had done on prior occasions. He switched the ice cream cone from his left hand to his right, balled his fist and punched the door. He missed the wooden door frame and put his arm through the glass window. Upon removing it, he cut his arm and severed the brachial artery on a shard of glass.
Jack Johnson and decedent's wife placed a tourniquet around decedent's arm. Paramedics transported decedent to Bridgeton Hospital. From there he was air-evacuated to Cooper Hospital, where he died within four hours of the accident.
Before the incident, decedent had consumed at least two seven-ounce bottles of Budweiser. While at Bridgeton Hospital and within forty minutes of the accident, decedent's blood was drawn and analyzed. The first blood serum reading showed .143 blood alcohol content and the second, .11. There was also a trace of cocaine metabolite in decedent's urine.
Prior to trial, plaintiff's counsel moved in limine to exclude any evidence of decedent's alcohol or cocaine use. The trial Judge barred this evidence until such time as he heard from Dr. Kathryn O'Hara, an emergency physician who treated decedent at Bridgeton Hospital. Dr. O'Hara testified as to the post-accident conduct of decedent. She stated that decedent thrashed around, pulled out the IVs that had been inserted in his body and was very combative. Dr. O'Hara attributed decedent's conduct to shock and felt that alcohol was only a minor contributing factor to decedent's behavior. The trial Judge determined that there was insufficient supplemental evidence of alcohol to admit such testimony, citing to the decision in Gustavson v. Gaynor, 206 N.J. Super. 540, 503 A.2d 340 (App. Div. 1985), certif. denied, 103 N.J. 476, 511 A.2d 655 (1986). The trial Judge further ruled that while evidence of decedent's blood alcohol level may have been relevant, its prejudicial effect substantially outweighed its relevancy.
Defendants raise several other issues on appeal. We briefly discuss the pertinent factual background.
During his closing argument to the jury, plaintiff's counsel stated:
For four days, ladies and gentleman of the jury, you've heard accusations, out and out accusations of a crime from [defense attorney] against [plaintiff]. We are going to discuss that, because, of course, I have to address those issues. I'd rather not; I would just rather get to the evidence. Now, before we ...